Person Availing Sexual Services At Brothel Induces Prostitution, Can Be Prosecuted U/S 5(1)(d) & 7 Of IT(P) Act: Kerala High Court - 2025-07-21

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‘Customer’ In A Brothel Induces Prostitution, Can Be Prosecuted Under IT(P) Act: Kerala High Court

ERNAKULAM: In a significant ruling that re-evaluates the role of a person availing sexual services at a brothel, the Kerala High Court has held that such an individual is not merely a "customer" but actively "induces" a sex worker to carry on prostitution. Justice V.G. Arun clarified that such persons can be prosecuted under Sections 5(1)(d) and 7 of the Immoral Traffic (Prevention) Act, 1956 (ITP Act).

The court, however, quashed the charges against the petitioner under Sections 3 and 4 of the Act, which pertain to keeping a brothel and living on the earnings of prostitution, respectively.

Case Background

The case, Sarath Chandran vs State of Kerala , arose from a police raid on a house in Kudappanakkunnu on March 18, 2021. The petitioner, Sarath Chandran, was found in a room with a woman and was arraigned as the 3rd accused in a crime registered by the Peroorkada Police Station. The police alleged that a brothel was being run at the premises, where accused Nos. 1 and 2 procured women and charged customers Rs. 2000 per hour for sexual services.

The petitioner approached the High Court seeking to quash the proceedings against him, arguing that as a mere "customer," the offences under the ITP Act were not applicable to him.

Arguments Presented

Petitioner's Contentions:

The petitioner's counsel argued that even if the prosecution's allegations were accepted in their entirety, no offence was made out. It was submitted that: - Sections 3 and 4 of the ITP Act apply only to those who keep or manage a brothel or live on the earnings of prostitution. - Section 7, which penalizes prostitution in or in the vicinity of public places, requires proof that the area was notified, a matter for trial. - Crucially, Section 5(1)(d), which punishes one who "causes or induces a person to carry on prostitution," does not apply to a customer who merely avails a service. The counsel asserted that it is the sex worker who carries on the business, and the customer has no role in it. Reliance was placed on several decisions from various High Courts supporting this view.

State's Position:

The learned Public Prosecutor contended that the applicability of the charges, particularly under Sections 5(1)(d) and 7, was a matter of evidence to be decided during the trial and should not be quashed at this stage.

Court's Analysis and Legal Reasoning

Justice V.G. Arun undertook a detailed analysis of the ITP Act's objectives and provisions, respectfully disagreeing with the view that a person paying for sexual services at a brothel cannot be prosecuted.

The court emphasized that the Act's primary object, as amended in 1986, is to prevent the commercialization of vice and trafficking by widening its scope to cover all sexually exploited persons.

On the Term 'Customer':

The judgment made a strong distinction, refusing to label the person availing services as a mere "customer." The court reasoned that a sex worker cannot be denigrated to the status of a "product" or "service" being bought.

“In my view, a person utilising the service of a sex worker at a brothel cannot be termed a customer. To be a customer a person should buy some goods or services. A sex worker cannot be denigrated as a product.”

The Act of 'Inducement':

The core of the court's reasoning was that the payment made by the person is an "inducement" for the sex worker to offer their body. This act directly brings them within the ambit of Section 5(1)(d) of the Act.

“The payment therefore can only be perceived as an inducement to make the sex worker offer his/ her body and act in accordance with the demands of the payer. Thus, a person availing the services of a sex worker in a brothel is actually inducing that sex worker to carry on prostitution by paying money and is therefore liable to be prosecuted for the offence under Section 5(1)(d) of the Act.”

The court noted that terming such an inducer as a "customer" would run contrary to the Act's object, which is to prevent human trafficking and not to punish the victims compelled into prostitution. It also referenced its earlier decision in Abhijith v. State of Kerala which held that a person who obtains domain over another for prostitution 'procures' them under Section 5.

Regarding Section 7, the court affirmed the view taken in Mathew v. State of Kerala , stating that the person with whom prostitution is carried on (the customer) is an integral part of the illegal act and falls within the provision's purview, provided the location is a prohibited area.

Final Decision

The High Court allowed the petition in part. It quashed the proceedings against Sarath Chandran for offences under Section 3 (keeping a brothel) and Section 4 (living on the earnings of prostitution) of the ITP Act.

However, the court permitted the prosecution to continue for the offences under Section 5(1)(d) (inducing a person to carry on prostitution) and Section 7 (prostitution in a notified area) , holding that the petitioner is prima facie liable under these provisions.